Second Circuit Tosses 'NYPD Blue' Indecency Case-UPDATED

44 ABC TV stations no longer on the hook for $1.21 million fine

NEW YORK CITY—The Second Circuit U.S. Court of Appeals has thrown out a $1.21 million fine levied by the Federal Communications Commission (FCC) against 44 ABC-affiliated TV stations for having broadcast less than seven (7) seconds' worth of actress Charlotte Ross's bare ass during an episode of 'NYPD Blue' back in 2003.

The ruling was the second speech-friendly ruling from the circuit in the past few months. Back in July of 2010, a three-judge panel of the circuit for the second time threw out FCC claims that "fleeting expletives" used by celebrities such as Cher and Nicole Richie during award shows broadcast on Fox Television stations were "indecent" under rules revamped by then FCC chair Michael Powell.

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The panel, which consisted of Circuit Judges Richard C. Wesley and Debra A. Livingston, as well as Judge Jane A. Restani sitting by designation, described its summary judgment decision as "nonprecedential," with the court deeming the FCC's indecency policy to be "unconstitutionally vague"—the same reasoning the court applied to the Fox case, even though in this case, the brief nudity was written into the show's script.

The Fox case was originally before the Supreme Court in May of 2009, and at that time, a majority of the justices agreed that the FCC had not violated the Administrative Procedures Act in changing its rules about "fleeting expletives" after a live broadcast of the 2003 Golden Globes awards featured musician Bono declaring his win to be "fucking brilliant." That opinion was authored by Justice Antonin Scalia, but in a rare break from conformity with him, Justice Clarence Thomas questioned the FCC's authority to regulate such speech in the first place.

The upshot of the Supreme Court's decision was to remand the case to the Second Circuit "for further proceedings consistent with this opinion," and that gave the circuit a chance to consider the First Amendment implications of the decision... and the chance once again to throw the case out. It did, of course, and even denied the FCC's motion for an en banc reconsideration of the decision.

ABC then argued that in light of the Fox decision, its fine also should be voided, and the Second Circuit agreed.

At issue in this case was the 'NYPD Blue' episode titled "Nude Awakening," and the panel summarized the "offending" footage thusly: "In the episode, Connie McDowell (played by Charlotte Ross), who has recently moved in with Andy Sipowicz, disrobes as she prepares to shower, and her nude buttocks are visible. As McDowell turns toward the shower, the side of her buttocks and the side of one of her breasts are visible. While she faces the shower, the camera pans down, again revealing her nude buttocks. Sipowicz’s young son, Theo, enters the bathroom and sees McDowell naked from the front. Theo blocks the audience’s view of McDowell’s nudity. Each character reacts with embarrassment, and Theo leaves the room and apologizes. McDowell, covering her breasts and pubic area, responds, 'It’s okay. No problem.' According to ABC and the ABC Affiliates, the scene was included to portray the awkwardness between a child and his parent’s new romantic partner and their difficulties in adjusting to life together." [Citations removed here and below]

However, even under the existing FCC decency code, the violation could not be sustained. As the court notes, in order for the FCC to find the material to be "patently offensive," it must look at three factors: "(1) the explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities; (2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; (3) whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value." [Emphasis in original] Also, "The context in which the material appears 'is critical'."

"Speech 'which is indecent but not obscene,' however, 'is protected by the First Amendment," the panel unanimously analyzed, citing several previous Supreme Court decisions. "'The First and Fifth Amendments protect speakers 'from arbitrary and discriminatory enforcement of vague standards' in laws and regulations. Standards are unconstitutionally vague if they do not 'give the person of ordinary intelligence a reasonable opportunity to know what is prohibited . . .' 'The First Amendment places a special burden on the government to ensure that restrictions on speech are not impermissibly vague.'"

In sum, the panel found that the FCC's criteria were indeed "impermissibly vague," especially in light of the fact that the FCC itself, in a previous case, had declared that, "nudity itself is not per se indecent."

In any case, "Fox's determination that the FCC's indecency policy is unconstitutionally vague binds this panel," the court said in its summary ruling which was issued earlier today. "Accordingly, we need not reach the administrative law or other constitutional challenges Petitioners raised."